The urgent application initiated by former president Jacob Zuma directly to the Constitutional Court without approaching lower courts will have “far reaching and punishing consequences” for the apex court, President Cyril Ramaphosa has argued.
“It will have far-reaching and punishing consequences for this court because if it concludes this case engages its exclusive jurisdiction, then all cases involving cabinet reshuffles and arguments that the president has in some or other way not upheld and defended the constitution will come to this court without first going before any other court,” Ramaphosa’s heads of argument read.
The president’s legal team led by Ngwako Maenetje and former state capture evidence leader Kate Hofmeyr filed the president’s heads of arguments on Monday in the case against Zuma and the MK party.
MK wants the court to set aside the appointment of acting police minister Firoz Cachalia and police minister Senzo Mchunu’s special leave.
The party also wants the court to set aside the decision to establish a judicial commission of inquiry into alleged infiltration of the security cluster by a sophisticated criminal syndicate.
Ramaphosa argues the court should dismiss the application not only because the legal questions posed could be argued at the High Court but also because it would have detrimental effects and result in a mounting caseload for it.
“The implications for this court’s overburdened workload and its developing jurisprudence will be profound,” Ramaphosa contends.
The court does not usually entertain applications that have not been argued in the High Court or Supreme Court of Appeal. Once the apex court has decided on a matter litigants have no other avenue to appeal.
“This court grants direct access only in exceptional and extraordinary circumstances. Only exceptional circumstances warrant as court of first and last instance. There is no good reason for it to do so in this case.”
MK, lead by advocate Dali Mpofu, concedes in its heads of argument that the court “is not well-suited to deal with urgent applications” but argues that the case was “overwhelmingly urgent”.
On exclusive jurisdiction, the party argues the constitution provides that only the Constitutional Court may decide that parliament or the president failed to fulfil a constitutional obligation.
The allegation of failure to fulfil constitutional duty is based on the president’s move to place Mchunu on special leave instead of firing him, appointing Cachalia, who is not a cabinet member, as an acting minister and the establishment of a commission, which will be chaired by a judge.
“This application falls squarely within the exclusive jurisdiction of this court. The applicants allege the president has failed to fulfil his constitutional obligation to uphold, defend and respect the constitution as the supreme law of SA,” MK’s heads of arguments read.
“Time and costs are saved by coming directly to this court.”
Ramaphosa disagrees the case is about failure to fulfil constitutional duty.
Should the court agree that the case falls within its jurisdiction, Ramaphosa argues that section 91(2) of the constitution — which empowers him to appoint ministers, assign their powers and functions, and dismiss them — also empowers him to place ministers on leave.
MK disagreed and pleads in its case that Ramaphosa does not have power to place a minister on special leave.
The president pins his argument on the word “assign” and argues that the constitution effectively also empowers him to temporarily “unassign” or withdraw Mchunu’s powers and functions.
“Section 91 (2) of the constitution gives the president a wide latitude to constitute his cabinet and to manage the allocations of powers and functions within it,” the president’s papers read.
“The president has the power to unassign or withdraw powers from a minister for a period of time so that he can take a properly informed decision on whether to dismiss the member.”
If that were not so, then in all cases of any serious allegation made against a minister, irrespective of their validity, the president would be required immediately to dismiss the cabinet member, he argued.
Ramaphosa said the cautionary move was important to ensure his decisions did not destabilise the executive leadership of the country. The president also addressed the challenge against Cachalia’s “acting” appointment and said the professor of law would be appointed as a minister in his taking over of the police ministry.
The MK party contends Ramaphosa could not legally appoint Cachalia as an acting minister because he is not a member of the cabinet. Ramaphosa says Cachalia will legally be appointed as a minister and therefore become a cabinet member.
“If appointed, Prof Cachalia’s appointment would be in terms of section 91 (3) (c) of the constitution. Prof Cachalia, once he assumes office, will in law be a member of the cabinet. The description ‘acting’ denotes only that the president might remove Prof Cachalia as minister … depending on the outcome of the Madlanga inquiry in six months.”
MK wants the court to decide urgently on the matter because Cachalia will assume office on August 1.
The case will be heard on Wednesday.
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